Document Requests
Parties in American litigation are generally allowed to request all relevant, non-privileged documents about the dispute. But a party needs to do more than just demand “all the documents” because the producing party may have a different understanding about what is relevant. So instead, parties make detailed requests for specific types of documents to make sure the other side knows it is expected.
Drafting a document request is difficult because the party drafting it often does not know for certain what documents the recipient has, so they need to describe the possible documents that may exist. And because a party often issues a document request early in a litigation, she may not yet know what the important factual questions in the case are.
Why should you continue to read this post about document requests?
You’ve received a document request and you’re not sure why it’s so long
You’re afraid that if you don’t read this post now, you may never read it
You’re already two paragraphs in and you’ve never quit anything
Attorneys Often Use Previous Document Requests As a Model
Document requests are usually lengthy and repetitive documents. An example from the United States Department of Justice is available here. And not only are the documents internally repetitive, different document requests may contain a lot of similar language from other document requests.
So that lawyers do not continually “re-invent the wheel” by starting from scratch on each document request, many draft document requests by taking an earlier document request and adapting it for use.
Some attorneys, however, use standard “form” discovery requests that pose the same requests in every case. This may make sense if an attorney repeatedly handles the same type of dispute, such as personal injury cases or debt collections. But many courts have rules limiting their use, such as Local Civil Rule 26.5 of the federal courts in New York City. This is because a standard form may contain requests that are over broad for a particular case.
Document Requests Often Begin With Definitions and Instructions
Just because a party requests documents, she does not automatically get them. Instead, the requests direct another party (often an adverse one) to gather and produce the documents. Because a requesting party wants to make sure that the responding party performs an appropriately thorough search, she will usually provide definitions of terms used in the body of the request.
Some of these terms describe the kinds of documents the party wants. In the example request from the Department of Justice, the government provided a very lengthy definition of “document,” that begins as follows:
"Document” means any written, recorded, or graphic material of any kind, whether prepared by you or by any other person, that is in your possession, custody, or control. The term includes agreements; contracts; letters; telegrams; inter-office communications; memoranda; reports; records; instructions; specifications; notes; notebooks; scrapbooks; diaries; plans; drawings; sketches; blueprints; diagrams; photographs; photocopies; charts; graphs; descriptions; drafts, whether or not they resulted in a final document; minutes of meetings, conferences, and telephone or other conversations or communications; invoices; purchase orders; bills of lading; recordings; published or unpublished speeches or articles; publications…
Definitions like these can be helpful to clarify that a document request is not limited to certain kinds of paper documents. And they are lengthy because the requester does not know for sure what kinds of documents the responding party has, and so it errs on the side of a broad request.
Still, some courts make definitions like these unnecessary by providing uniform definitions of terms like “document” in their local rules. For example, Local Civil Rule 26.3(c)(2) of the federal courts in New York City applies the following definition of the term “document” to all document requests:
The term “document” is defined to be synonymous in meaning and equal in scope to the usage of the term “documents or electronically stored information” in Fed. R. Civ. P. 34(a)(1)(A). A draft or non-identical copy is a separate document within the meaning of this term.
In addition to defining general terms, a document request will often define the names of parties and other names that are unique to the case.
In the example request from the Department of Justice, the government defined “Dentsply” to mean the defendant and also “its predecessors (including Gendex Corporation), successors, divisions, subsidiaries, and affiliates, located both in the United States and in any other country, each other person directly or indirectly, wholly or in part, owned or controlled by it, and each joint venture to which any of them is a party, and all present and former directors, officers, employees, agents, consultants, or other persons acting for or on behalf of any of them.” This way, the request does not need to use the defendant’s full legal name or the list of other affiliated entities and people in each of its requests, but still make clear that the requests apply to each of them.
A document request often defines other terms that are used in its requests. Here, the example request defined “denture” as “artificial teeth fixed in a base material used to replace some or all of a patient’s natural teeth.” This permits the request to ask for documents about “dentures” and reduce the concern that the term is too vague for the responding party to be sure what qualifies and what does not.
A document request also often includes instructions for the response. These may include instructions on the computer format for responses, such as the ones on page 7 of the example, and a time period for the responding party to use in her document search, such as the one on page 6.
Litigants Use Expansive and Specific Requests
In the body of a document request, an attorney will set forth numbered requests for documents. The number of requests may vary, but it is not uncommon for a document request to have fifty or more numbered requests. In my experience, some requests are broad and others are specific.
In the example request from the Department of Justice, the government makes broad requests, such as request number 14 for “All agreements between your company and any dealer or dental laboratory…” Here, the government is likely unaware of all of the agreements that existed between the responding party and other “dealers or dental laboratories,” so it requested all of them.
An even broader example is number 19, which seeks “All documents that list, report, describe, summarize, analyze, discuss, or comment on any dental laboratory customers that you have identified for or provided to your dealers.” Here, the government likely does not know what these documents look like, and so drafted an expansive description of any possible document with relevant information about customers.
It also makes specific requests, such as request number 1, which seeks, among other things, “Your company’s certificate of incorporation…” Here, instead of making a broad request for a category of documents that includes the certificate, the government made a specific request for it. This makes it clear to the recipient that the requester expects to receive the document .
In my experience, a good document request includes both requests for the specific documents that the requester knows exists and broad requests for the categories of documents that would be relevant for the case.